“until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.”

The Court was dealing with the question as to whether the Magistrate has power under CrPC to pass an order permitting taking of voice sample in the aid of criminal investigation. Noticing that the CrPC is silent on the said issue, the Court said that thelaw on the point should emanate from the Legislature and not from the Courtfor the following reasons,

the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than 17 reasonable bending and stretching of the principles of interpretation and

if the legislature, even while making amendments in the Criminal Procedure Code (Act No.25 of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in Sections 53A and 311A of CR.P.C., then it may even be contended that in the larger scheme of things the legislature is able to see something which perhaps the Court is missing.

The Court, however, said,

“what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. However, when a yawning gap in the Statute, in the considered view of the Court, calls for temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable.”

It said that the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter. It, hence, conferred the power on the Judicial Magistrate to order a person to give a sample of his voice for the purpose of investigation of a crime.

Rajasthan High Court: A Single Judge Bench comprising of Vijay Bishnoi J., while allowing to take the voice sample of the accused pronounced that “when the criminals are using the modern technologies to commit the crime, it is not justified to restrain the police or investigating agency to counter it”.

The accused in the present case had indiscriminately fired gunshots at the residence of two persons and for the same reason, an FIR was registered by the victims. It was also noted that immediately after the filing of the FIR victims had received phone calls pertaining to life threats. In the course of the investigation, police had arrested two persons and for that purpose, an identification test was called for, but the victim again received calls from Italy through Voice over Internet Protocol (VOIP).

On arrest of the accused person, police felt that the information given on the part of the respondent may not be admissible and for that reason the police authorities had filed an application before the Additional Chief Magistrate to give directions to the respondent for submission of his voice sample which was rejected on the basis of ‘no consent” of the respondent. Courts below had rejected the application of the respondent for the collection of the voice sample.

The Hon’ble High Court, on analysing the contentions placed in reference to the issue for recording of the voice sample of the accused, explained its stance by relying on the Supreme Court judgment of Ritesh Sinha v. State of U.P., (2013) 2 SCC 357, in which it was well settled that if an accused person is compelled to give his voice sample it is no violation of his rights under Article 20(3) of the Constitution of India and the law is silent on the same. Therefore, the Court by explaining the various aspects of this issue and allowing the criminal misc. petition stated that the police cannot be restrained from taking voice sample of respondent for establishing his involvement in the crime. [State of Rajasthan v. Vikramjeet Singh, 2018 SCC OnLine Raj 1343, dated 23-05-2018]

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